The College of Commissioners has decided notify the Court of Justice of the European Union on Bulgaria’s failure to comply with the obligations to fully transpose into national law the requirements of Directive 2004/49 / EC of the European Parliament and of the Council of 29 April 2004 on safety on the Community's railways and amending Directives 95/18 / EC and 2001/14 / EC (the Directive). The decision was announced in European Commission’s press release, which states that under the Directive Member States shall establish a safety authority which, in its organization, legal structure and decision-making, is independent of railway undertakings, the infrastructure manager, the charging authority, the infrastructure capacity distributing authority and the notified body, as well as any party whose interests might be in conflict with the tasks entrusted to the investigation authority. In this respect, the press release says, Bulgaria has not ensured the full transposition and implementation of the Directive.
In light of the above decision of the College, the Ministry of Transport, Information Technology and Communications informs that in the course of the infringement procedure it has the following position:
The Bulgarian state considers that it has adopted the appropriate legal and practical mechanisms to ensure and guarantee the independence of the safety authority.
1. The Intelligence and Accident Investigation Unit (Unit) was established as the sole safety authority. (Executive Agency Railway Administration no longer has accident and incident investigation functions).
2. The unit is structured as a permanent body that includes more than one investigator as required in the Directive. Investigators employed in the Unit have the necessary qualifications and experience to perform their functions in the event of an accident or incident. Each investigation order is issued by the Head of the unit. Reports on the completed investigations are not subject to validation or approval by a higher authority. The selection of staff in the Unit is carried out by an independent human resource selection agency.
3. The unit is independent in the decision-making process of the investigation. The Ministry or any other authority does not interfere with the Unit's activities.
In connection with the EC's finding that the independence of the unit is not proven because it is in the structure of the Ministry and because the Minister is the governing body of the railway manager and of the state railway operator, the Bulgarian state states that the Directive does not prohibit the Unit from being part of the structure of a ministry or other executive body. The Bulgarian authorities are of the opinion that each country has the right to structure the Unit in the most appropriate way from an administrative, functional and structural point of view, provided that the Unit is independent in making its decisions by infrastructure managers, railway undertakings, charging authorities, infrastructure managers, the safety authority, and any rail network regulator. The Bulgarian authorities point out that, in other Member States (eg Austria), the accident investigation Unit is subordinated to the Minister of Transport and is part of the Federal ministry's structure. In Ireland, the Unit is structured in the Department of Transport, Tourism and Sport.
The Bulgarian authorities state that the Ministry and the Minister are not an infrastructure or a railway undertaking operator, do not allocate infrastructure capacity, are not a safety authority or a rail network regulator. These functions and activities are performed by other, separate and independent legal entities with an absolutely separate budget, organization, structure and management bodies - these are the railway undertakings (the licensed railway operators), the railway infrastructure manager - the National Railway Infrastructure Company the national regulatory authority - the Executive Agency "Railway Administration". The managing bodies of the railway carriers BDZ - Passenger Transport EOOD and BDZ - Freight Transport EOOD are not appointed by the Minister of Transport, Information Technology and Communications. The management bodies of the two companies are appointed by the Board of Directors of Holding Bulgarian State Railways EAD. The Bulgarian Infrastructure Manager (NRIC) is an independent legal entity, separately and independently of the minister / ministry whose acts are directly appealed to the court (that is, the Minister is not a higher authority). The designated entities have a fully autonomous budget, a separate and independent structure with separate legal status, separate management bodies and separate funding. They are traders and are not part of the ministry. The Bulgarian authorities point out that in most Member States of the European Union, the Minister responsible for railway policy also appoints the managing bodies of the railway infrastructure manager and of the State Railways.
4. While defending the thesis that the administrative structure of the Unit within the Ministry is not an obstacle to the independence of its activities and decision-making, the Bulgarian authorities also express an opinion on the inadequacy of the establishment of a new administrative structure, stating that this exceeds the requirements of the Directive.
5. In connection with the EC's findings that the unit should have an independent budget, the Bulgarian party points out that the directive requires the unit to be financially secured in its activity so that it can take its functions without financial problems. The Bulgarian side provides this. The Bulgarian authorities state that an independent budget, according to the Bulgarian legislation, means that the unit should be structured as a separate ministry or state agency. At the same time, ministries and state agencies are structures that are set up to conduct an overall state policy in a certain field that can not be shared with the unit that is the investigative body. According to the Bulgarian administrative and budgetary legislation, as well as to the established budget rules and discipline, the administrative structures as ministries, state agencies and state committees - bodies that form the state policy justify an autonomous budget to the Ministry of Finance.
6. The Bulgarian authorities state that the Bulgarian legal system has several categories of units, which, although in the structure of the respective ministry, have guaranteed independence in carrying out their activities and in making their decisions. These are the inspectorates that investigate corruption signals and the internal audit units that audit the management and control systems of the respective ministry.
In conclusion, the opinion of the Bulgarian party is that the Unit was established and functions as a permanent body independent in its decision-making, without any external intervention, and is provided with the necessary financial, human and technical resources to carry out investigations. All expenses for the activity of the Unit, including the increase of the professional qualification, are fully covered by a budget provided by the Ministry of Transport, Information Technology and Communications (the Head of the Specialized Railway Accident Investigation Unit develops and submits to the Ministry of Transport, Information Technology and Communications draft budget for the next financial year and a three-year budget forecast. The resource needs of the Unit are also included).
According to the procedures, EC services shall prepare the documents for submission to the Court of Justice of the European Union. Once the case has been instituted, the EU Court will send a formal notice to Bulgaria. The Bulgarian side will wait for the official notification. The Bulgarian side will carry out the necessary technical consultations with the EC services in order to find the best solution.
Railway transport safety is a priority for Bulgaria.
The Bulgarian side will not allow financial sanctions to be imposed for non-compliance with EU law.